Judge: Election lawsuit decision coming soon

JOHNSTOWN — U.S. District Judge Kim R. Gibson indicated Tuesday that a ruling could come as early as today on a request by a candidate for Congress and four Somerset County voters who have challenged a Pennsylvania Supreme Court ruling that allows an extended deadline for mail-in and absentee ballots.

The judge heard 90 minutes of spirited debate between the attorneys representing the candidate and voters who want the original deadline for ballots — established by the Pennsylvania General Assembly as 8 p.m. Nov. 3 — reinstated, and the attorneys representing the Pennsylvania Secretary of State and Democratic National Committee, who favor the three extra days for turning in the mail-in and absentee ballots that were approved by the state Supreme Court.

Attorney David H. Thompson of Washington, for the plaintiffs, characterized the Supreme Court decision in late September as “arbitrary,” asking, “Why not five days or 10 days?”

He represented Jim Bognet, a Republican candidate for Congress from Hazleton, and Donald H. Miller, Debra Miller, Alan Clark and Jennifer Clark, voters from Somerset County.

He charged that the state Supreme Court abused its powers by changing voting deadlines that were set by the General Assembly.

He contended that altering the deadline would “dilute” the ballots cast by the voters who were on time, noting that those untimely ballots will include many with no postmarks or with illegible postmarks.

“We are trying to vindicate the rights of those who came in on time, not those who came in late,” Thompson argued.

Attorney Michele D. Hangley, representing Pennsylvania’s Secretary of State Kathy Broockvar, disagreed.

She called Thompson’s “dilution argument” something new, and she claimed that changing the rules of next Tuesday’s election at this late date would disenfranchise many voters.

“Dozens and dozens of voters will be scrambling to turn in their ballots. It’s going to be an administrative nightmare,” she said.

Hangley pointed out the ballots that arrive for counting between the Nov. 3 deadline and the new Nov. 6 deadline still must have been cast prior to the original deadline.

Worries that many of those ballots will actually have been cast after the close of the polls amounts to speculation, Hangley stated.

By changing the rules days before the election will make some voters feel the “the rug has been pulled out from under them, she said.

The Democratic Nation Committee was represented by Uzoma Nkem Nkwonta who said if Judge Gibson would issue an injunction at this point so close to the election, it would be harmful to the voters.

He addressed the contention that the state Supreme Court breached its powers by arguing that “Pennsylvania Law contemplates a role for the judiciary (concerning elections) … nothing that occurred here replaced the Legislature.”

All sides of Tuesday’s debate agreed that the election presents complex issues that seem to change day by day.

All of the attorneys discussed the “Purcell Principle,” which indicates the courts should not alter the election procedures just prior to the election.

This “principle” stems from a 2006 case in which a voting procedure was altered by a District Judge, reversed by the Appeals Court, then once again reversed by the U.S. Supreme Court.

Another point of discussion was Monday night’s decision by the U.S. Supreme Court that upheld Wisconsin’s refusal to extend its voting deadline.

Yet another issue was whether Boget and the Somerset County voters even have standing to sue in their individual capacities.

Thompson pointed out that he was not representing the Republican Party during the hearing, but only his five clients.

One issue that did not come up was a request by Boockvar that Gibson recuse himself and transfer the case to U.S. District Judge J. Nicholas Ranjan, who has heard several other cases involving this year’s election issues.

Gibson is being asked to issue a restraining order and temporary injunction blocking the extended voter deadline.

He said the attorneys were “very helpful” to his understanding of the issues and he concluded Tuesday’s hearing by stating, “I will issue a decision as expeditiously as possible.”


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